CRL.L.P./700/2017 of THE STATE GOVT OF NCT OF DELHI Vs HARI KISHAN @ BUNTY & ORS

*IN THE HIGH COURT OF DELHI AT NEW DELHIDate of hearing and order: December 7, 2017.

+CRL.L.P. 700/2017THE STATE GOVT OF NCT OF DELHI

..... PetitionerThrough:Ms. Aashaa Tiwari, Additional PublicProsecutor for the State with InspectorBalbir Singh, Police Station VijayVihar, Delhi

versus

HARI KISHAN @ BUNTY & ORS

Through:None.

..... Respondent

CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHIHON'BLE MR. JUSTICE P.S.TEJI

VIPIN SANGHI, J. (Oral)

Crl. M.A. No. 20190/2017 (Exemption)

Exemption is allowed subject to all just exceptions.

Application stands disposed of.

Crl. M.A. No. 20189/2017 (Condonation of delay of 86 days infiling the leave petition)

1.The State has filed the application under Section 5 of theLimitation Act read with Section 482 of Cr. P.C. for seekingcondonation of delay of 86 days in preferring the accompanying leave

petition to challenge the impugned judgment dated 13.04.2017rendered by the learned Additional Sessions Judge in Sessions CaseNo.19/2015 titled as State vs. Hari Kishan @ Bunty and 3 others,arising out of FIR No.121/2013 registered at Police Station VijayVihar, Delhi.

2.In the application for condonation of delay, it has beensubmitted that the judgment was delivered on 29.05.2017 but theappellant could not prefer the leave petition within the stipulatedperiod as the file pertaining to the case was sent to the variousauthorities and after passing through various channels, the file-alongwith the opinion regarding the case being fit for appeal, was sentto the Department of Law Justice and Legal Affairs. The chiefprosecutor gave his opinion to challenge the impugned judgment on13.04.2017, which was forwarded to Director of Prosecution, whoforwarded the same on 07.11.2017 to the Office of Ld. StandingCounsel on 10.11.2017. Thereafter, the petition got signed andreceived in the office of Additional Public Prosecutor for the State on27.11.2017 and the appeal was filed on 28.11.2017. According to thelearned Additional Public Prosecutor for the State, the delay of 86days in filing the appeal was not deliberate or intentional but it wasdue to procedural aspects. It has been submitted that the appeal filedby the State that the refusal to condone the delay can result inmeritorious matter being defeated. It is further contended that whensubstantial justice and technical considerations are pitted against eachother, cause of justice deserves to be preferred for the other side

cannot claim to have vested right in injustice being done because ofnon-deliberate delay. In support of his contention the State has reliedon the decision in the case of Collector Land Acquisition vs. Katiji,1987 (2) SCC 107; State of Nagaland vs. Lipok AO, 2005 (3) SCC752.

3.Keeping in view the explanation and the law as laid down in thecase of State of Nagaland v. Lipok AO and others(supra), this Courtwould have issued notice on this application to the respondent, but forthe fact that, on merits, after hearing learned Additional PublicProsecutor for the State and perusing the record, we are not inclined tointerfere with the impugned judgment.

Crl. L.P. No. 700/2017

4.The present leave petition has been filed by the State underSection 378 of the Cr.P.C. seeking leave to appeal against thejudgment dated 13.04.2017 passed by the Court below.

5.Leave to appeal has been sought by the State feeling dissatisfiedby the judgment of acquittal delivered by the Court below.

6.The case in briefis that on 12.02.2013, prosecutrix had metaccused Rehana (respondent No. 4 herein) at Golaghat Station, whomshe knew previously, as she had lived as tenant in her house. Sheasked the prosecutrix at Golaghat Railway station as to where she wasgoing to which the prosecutrix replied that she was going to Guwahatifor an interview, whereupon respondent No. 4 told her that she was

also going there for some official work. Prosecutrix and respondentNo. 4 boarded the same train and sat on the same berth. Co-accusedMukesh, husband of the accused Rehana was also accompanying herand after reaching Guwahati Railway Station on 13.03.2013 at 4.00AM, accused Rehana got the prosecutrix introduced to accusedShabnam by telling that she is her sister. Prosecutrix wanted to maketelephone call to her elder sister Farha from PCO who resided atHidayatpur Guwahati, but Rehana tore the paper on which phonenumber of her sister was written. Since the prosecutrix did notremember the phone number of her sister, therefore she could notmake the call. Accused Rehana told the prosecutrix that she woulddrop her at Hengrawari and would thereafter go for her own work andthe prosecutrix believing her remained with them.

7.The further prosecution story is that accused Shabnam told theprosecutrix that she wanted courageous girl like her as caretakerfor her children at monthly salary of Rs.2,500/- to which prosecutrixagreed as having been in urgent need. Thereafter, accused Rehana, herhusband co-accused Mukesh, and Shabnam alongwith prosecutrixcame to Delhi by train. They kept the prosecutrix at Delhi in the houseof one Aslam, and husband of accused Rehana, i.e., accused Mukeshforcibly committed rape upon her. Thereafter, accused - Bunty alsocommitted rape upon her. It is also the case of the prosecution thatthey poured kerosene oil over her and threatened to burn her and gaveher several beatings. Thereafter, all the accused persons startedbringing customers and forced her for prostitution. They used to take

money from the customers. The prosecutrix was not permitted to goanywhere.

8.Statement of the prosecutrix under Section 164 of Cr.P.C. wasrecorded on 06.03.2013 in which she reiterated these averments. Shestated in her statement that-the day before, the accused had broughtfour customers, out of which three had committed rape upon her andone had asked her name and her address and police reached the spotafter an hour. Thereafter, law set into motion, vide DD No.70B dated05.03.2013; FIR was registered at Police Station Vijay Vihar; Sub-Inspector Gajender went to the spot and the prosecutrix was taken tohospital for medical examination. Accused Hari Kishan was arrestedat the spot, and the other accused Rehana and Mukesh were arrestedfrom Golaghat, Assam.

9.After completion of investigation, charge sheet was filed in theCourt. Charge under Section 344/365/368/120B of IPC and Section 4,5, and 6 of the Immoral Traffic (Prevention) Act, 1956 were framedagainst all the accused. However, charge under Section 376D wasframed against accused Hari Kishan @ Bunty and Mukesh and theaccused Rehana and Shabnam @ Jannatul Ferdus. All the accusedpersons pleaded not guilty and claimed trial. To prove the case of theprosecution, in all 24 witnesses were examined. They are; ConstableRanjeet Singh (PW-1), Dr. Deepti Bhalla (PW-2), WCT. SandhyaRani (PW-3), Constable Tara Chand (PW-4), Constable Narender(PW-5), Head Constable Rakesh Kumar (PW-6), Dr. Nitika Gupta(PW-7), H.C. Chandermohan (PW-8), Constable Vikram Kumar (PW-

9), Constable Yogendra (PW-10), Constable Om Prakash (PW-11),Dr. Kaustuv Kiran (PW-12), Inspector Ajay Kumar Singh (PW-13),Learned MM (PW-14) who recorded the statement under Section 164of Cr.P.C., Ms. L. Babyto Devi (PW-15), WCT. Roshni (PW-16), Ct.Neelam (PW-17), Aslam Ali (PW-18), prosecutrix (PW-19), Dr. VijayDhankar (PW-20), HC Narender Kumar (PW-21), SI Gajender (PW-22), SI Sunita (PW-23) and Constable Dinesh Kumar (PW-24).

10.After hearing the case and considering the depositions, thelearned trial court has acquitted all the respondents/accused personsvide impugned judgment against which the State has preferred theinstant leave petition seeking leave to appeal against the impugnedjudgment.

11.The grounds taken by the State to challenge the impugnedjudgment are that one gentleman who came forward and helped theprosecutrix wanted to hide his identity and therefore, the InvestigatingOfficer chose not to examine him and cite him as prosecution witness,which proved the missing link in the prosecution case. It is contendedthat the prosecutrix in her statement has herself stated that the accusedhad forcefully tied her and committed rape on her against her wish.Thus, there was no consent given by the prosecutrix to establishseveral relationship with any of the accused. It was also contended thatthe prosecutrix was forced into the prostitution against her wishes, andaccused persons tied her hands, legs and mouth and also gavebeatings, cut marks, cutting on her body after she refused the accusedpersons to do such work. Allegations of pouring kerosene oil on the

prosecutrix and threat of killing her were also leveled, in case she didnot submit to their dictates. It is further contended that the prosecutrixhas deposed that the customers were sent into the room where she waskept , which was locked from outside and the accused remainedpresent by sitting outside the room. It is contended that the statementof the prosecutrix alone is sufficient to prove the guilt of the accused,and no corroboration is required, unless there are compelling reasons.The evidence of victim of sexual assault stands almost at par withevidence of an injured witness and, to an extent, is even more reliable.

12.We have heard the submissions of Ms.Aashaa Tiwari, learnedAdditional Public Prosecutor for the State and gone through thecontents of the appeal as well as the impugned judgment.

13.A perusal of the testimonies of PW-15, who is the FSL expertand conducted the examination of exhibits and gave detailed reportshows that semen was not detected on Ex.1a to 1l, which are vaginalswab, cervical mucus collection, underwear, brassier, breast swab,swab in between finger, body fluid swab, rectal swab, oral swab,culture swab, pubic hair and matted pubic hair respectively. Thetestimony of doctor (PW-7), who medically examined the prosecutrix,shows that there were no sign of external injury at the time ofexamination of the prosecutrix. It was further reported that on localexamination: labia minora and majora looked normal. The doctor alsodeposed that Hymen was torn, no bleeding p/v. There were no rectalinjuries, external anal sphincter was normal, genital was normal, andpubic hair was normal. The medical examination was done andsamples for forensic examination proximate to the point of time whenthe prosecutrix claimed to have been raped by customers.

14.The impugned judgment notices that there was no missingreport lodged in respect of the prosecutrix at Assam, despite theprosecution case being that she was missing for almost 18 days. Nowitness or the customer pertaining to the acts was apprehended by thepolice or brought on record. In fact, no statement of neighbor orlandlord was recorded for the purpose of confirming the prosecutioncase. Shri Aslam Ali (PW-18) who was the owner of the premises,even he did not deposed about the prosecutrix staying there, or publicpersons usually coming or going from there.

15.This court further observes that SI Ravi-who was present at thespot, was not examined and there was no clarity as to the mobileNo.[REDACTED] as to whom it belonged. Even no articles were seizedfrom C-59, Avantika despite the fact that it was the case of surpriseraid within one hour of going out of four persons on 05.03.2013 when,allegedly three of those persons had forcibly established physicalrelations with prosecutrix. The learned trial court also recorded that itwas not clear at all as to when police reached the spot for the firsttime; who opened the door; what was the position inside; how manyrooms were there; in which room prosecutrix was found; how manypersons were present there, and; whether prosecutrix was found lockedin any room. The brother of prosecutrix was also not examined.

16.For proving the case under Section 376, the following judgmentwould be guiding factor to reach the conclusion:

In Atender Yadav vs State Govt Of Nct Of Delhi2013 (4) JCC2962, the Court observed that :

“It is true that in case of rape, the evidence of theprosecutrix must be given pre-dominant considerationand in certain cases even without any corroboration,testimony of the prosecutrix should be given due credenceand weightage as in all the rape cases the prosecutrixsuffer great stress, trauma, humiliation and due to thisfactor alone many cases of rape are not even reported bythe victims. However, at the same time, it cannot bedenied that false allegation of rape can cause equaldamage,humiliation,embarrassment,harassment,disgrace and agony to the accused as well.”

In the case of Tameezuddin @ Tammu vs. State of (NCT) ofDelhi (2009) 15 SCC 566,the Supreme Court held as under:

“It is true that in case of rape the evidence of theprosecutrix must be given predominant consideration, butto hold that this evidence has to be accepted even if thestory is improbable and belies logic, would be doingviolencetotheveryprincipleswhichgoverntheappreciation of evidence in criminal matter. We are ofthe opinion that story is indeed improbable.”

17.From careful reading of the impugned judgment and thedeposition of the material witnesses, including the testimony ofprosecution witnesses, we find that the trial Court had given clear,

cogent and convincing reasons for disbelieving the testimony of theprosecutrix, and we are not inclined to interfere the reasoning given bythe learned Trial Court.

18.In view of the aforesaid discussion and in the facts andcircumstances of this case, we are not inclined to grant leave to appealto the petitioner – State. Consequently, the present petition for seekingleave to appeal filed by the State is dismissed.

DECEMBER 07, 2017pkb

VIPIN SANGHI, JP.S. TEJI, J